Local, state, and federal laws protect employee rights in the workplace, and employers are obligated to follow the various statutes that the U.S. Equal Employment Opportunity Commission and other government agencies oversee. These laws were enacted to protect employees from discrimination, harassment, hostile work environments, and other unfair labor practices. Even though many of these laws are complex, employers must strive to understand the scope of their responsibilities, so they do not unintentionally violate the legal rights of their employees or job applicants.
Employers Must Protect Employee Rights
Although not all workplace laws apply to every business and every employee, in general, the following is a list of practices that employers cannot engage in without violating the law:
- Employers cannot ask prohibited questions of employees or job applicants.
- Employers cannot require their employees to sign non-compete agreements that are too broad in scope.
- Employers cannot forbid their employees from revealing the terms of their employment package to their colleagues.
- Employers cannot pay non-exempt workers less than a minimum wage.
- Employers cannot ignore a non-exempt worker’s right to overtime pay.
- Employers cannot guarantee a paid position to an unpaid intern.
- Employers cannot discriminate against employees or job seekers.
- Employers cannot sexually harass workers or job applicants.
- Employers cannot demand that employees work off the clock.
- Employers cannot retaliate against whistleblowers.
- Employers cannot misclassify employees when determining an exempt or non-exempt status.
- Employers cannot hire an independent contractor and then treat that worker like an employee.
- Employers cannot discipline employees for complaining about their workplace on social media.
- Employers cannot ignore instances of a hostile work environment.
- Employers cannot insist that their employees have vaccinations.
Employers Must Understand the Scope of Legal Responsibilities:
· Employers cannot discriminate against job seekers.
EEOC enforces laws prohibiting discrimination, and employers are prevented from asking discriminatory questions of job applicants. For example, employers cannot inquire about an applicant’s age, marital status, religion, or plans to procreate. In most cases, employers cannot consider potentially discriminative factors in hiring their decisions and cannot ask about these matters during the interview process. Employers should be aware of the kinds of communications and actions that could be considered discriminatory so that they do not knowingly or unknowingly violate the rights of job seekers.
· Employers cannot require their employees to sign non-compete agreements that are too broad in scope.
Non-compete agreements generally stipulate that employees cannot work for a competing organization for a specified period after leaving the company. Although non-compete agreements are now illegal in some states, in the states where they remain contractually viable, these agreements must be “reasonable” in scope and cannot be so broad as to prevent the former employee from obtaining a new position in their field of expertise. For instance, rather than preventing a hospital administrator from working at any healthcare facility, a legal and reasonable non-compete agreement might state that the former employee cannot accept a similar position at a hospital that is within a 15-mile radius of their former employer.
· Employers cannot forbid their employees from revealing the terms of their employment package to their colleagues.
Although employers can ask their workers not to discuss their salary or benefits packages with other members of the staff, employers have no legal right to prohibit these discussions. When employees engage in conversations with their colleagues about their compensation and benefits, this is often the only way employees can accurately gauge wage equality in the workplace.
· Employers must pay non-exempt workers a minimum wage.
Employee compensation can be complex, but the rules regarding minimum wage are straightforward. The Fair Labor Standards Act (FLSA) contains federal minimum wage provisions and the agency requires employers to pay non-exempt employees a minimum wage. Many states also have laws that address minimum wage limits. When an employee is subject to state and federal minimum wage laws, the worker is entitled to the higher of the two minimum wages.
· Employers must pay non-exempt workers for overtime.
The overtime provisions of the FLSA state that a non-exempt employee is generally eligible for overtime pay if they work more than forty hours per week. In some states, however, overtime pay is due when workers work more than eight hours in a single day. In these instances, even if the worker has not met the federal threshold of forty hours per week, the employee must be paid time-and-a-half for any hour they work over eight hours.
· Employers cannot guarantee a paid position to an unpaid intern.
Although companies may be tempted to entice their unpaid interns to return to the organization as paid employees, the promise of a paid position at the end of the internship could violate federal and state minimum wage laws. A guarantee of paid employment would infer that rather than the internship being an opportunity to provide a valuable learning experience for the student, the promise of a paid position could mean the internship was an unpaid – and therefore illegal – training period.
· Employers cannot discriminate against workers.
‘The EEOC prohibits discrimination against workers based on eight broad categories: race, color, religion, sex, national origin, age, disability, and genetic information’. 1 That means none of these factors, known as protected classes, can be used when making employment decisions, such as hiring, determining compensation, or awarding promotions. Over the year, the number of protected classes has grown, and some states have expanded their list to include other classes. For example, marital status and political affiliation are now among the protected classes in California, while Florida prohibits discrimination against a person based on their AIDS or HIV status.
· Employers cannot sexually harass workers.
Harassment is a form of employment discrimination defined as unwelcome conduct based on race, color, sex, sexual orientation, gender identity, religion, pregnancy, national origin, age 40 or older, disability, genetic information, or family medical history. Harassment is unlawful when “enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they believe discriminate against individuals in violation of these laws.” 2
· Employers cannot demand that employees work off the clock.
Non-exempt employees are covered under the rules of the Fair Labor Standards Act, and according to agency regulations, they cannot be required to perform tasks after their paid shift ends. Employers should also be careful not to ask their employees to work after hours for cash. In these instances, employers could face fines and penalties for failing to withhold payroll taxes or if the employee files a complaint alleging they were not adequately compensated for the hours they worked.
· Employers cannot retaliate against whistleblowers.
Laws defined by the Department of Labor state that employers cannot retaliate against employees for exercising their rights under the Whistleblower Protection Act of 1989. It is against the law for employers to terminate or take disciplinary action against a worker who complains about illegal activity, such as a violation of any law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a danger to public health or safety, fraud, or corruption, at their workplace. Retaliation occurs when an employer fires an employee or takes any adverse action against an employee for engaging in protected activity. An adverse action is an action that “would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity. Forms of retaliation include termination, demotion, layoffs, denial of a promotion, or reduced pay or hours.” 3.
· Employers must classify employees as exempt or non-exempt.
To comply with Department of Labor (DOL) and Fair Labor Standards Act (FLSA) regulations, employers must correctly classify their workers as exempt or non-exempt. The correct classification of workers is essential because non-exempt employees generally have more protections than exempt employees. To ensure an accurate status is assigned to each employee, employers must familiarize themselves with all relevant state and federal regulations to avoid fines and regulatory penalties.
· Employers cannot hire independent contractors and treat them like employees.
Hiring independent contractors instead of employees allow businesses to control costs. Hiring independent contractors will enable businesses to avoid paying for employee benefits and some employment taxes when businesses classify workers as independent contractors when they are employees. If a company dictates when and how workers perform their duties, they should be classified as employees, not independent contractors.
· Employers cannot discipline employees for complaining about their work on social media.
Employers must proceed cautiously before disciplining or discharging an employee because the worker posted a complaint about the organization’s compensation, benefits, or working conditions on social media. Employees have a legal right to discuss their work with their colleagues, publicly and on social media. This kind of online communication is permitted because any efforts made by the employer to curtail a worker’s expression could be viewed as an illegal attempt to prevent the workers from unionizing or organizing. While voicing workplace concerns on social media is generally within an employee’s rights, workers must also be careful about the kind of information they share online. Employees who post threats of violence, harassing behavior, or false statements could find themselves looking for another job.
· Employers are obligated to address instances of a hostile work environment.
Employers are legally obligated to ensure the workplace is a safe environment and that any employee complaints are addressed and managed promptly and appropriately. The EEOC defines a hostile work environment as one where an employee must endure offensive conduct for continued employment. The behavior is severe and pervasive enough that a reasonable person would find it intimidating, hostile, or abusive. Under this definition, a single inappropriate comment from a co-worker would not likely meet the criteria of a hostile workplace.
· Employers cannot insist on vaccination mandates.
Employers have a long history of requiring workers to have certain vaccinations. Hospitals, for example, have long demanded that their employees to be vaccinated against the flu virus. While mandating vaccinations is not illegal, employers can violate the law if exemptions are not allowed for employees who have valid medical reasons or deeply held religious beliefs.
If You are an Employer Facing a Legal Claim
Employers must be careful in instances where a violation of an employee’s rights has occurred. By unintentionally admitting to a breach or providing too many details about the incident, employers who face these allegations without a skilled and experienced labor and employment lawyer can turn a minor complaint into a major investigation. If you are an employer with an employee who has filed an administrative complaint against you and your organization, call Treaty Oak for help now. Our lawyers offer a free consultation and are happy to help.
About Attorney Natalie Lynch
Attorney Natalie Lynch is the managing member of Treaty Oak, and she and her team of attorneys and legal professionals have many years of experience working with businesses to help minimize employment risk factors. Ms. Lynch is also a dispute resolution mediator and the only consulting and credentialed investigator in Central Texas who conducts third-party investigations into allegations of harassment, discrimination, hostile work environment, and other issues.
Call Treaty Oak Now for a Free Consultation
If you are an employer working to resolve a labor and employment dispute or other legal matter, protect yourself, your employees, and your business by contacting Treaty Oak. Our team can help you navigate the complexities of your legal dispute from inception to resolution. If you have questions about a labor or employment matter, contact Treaty Oak now to schedule a free consultation. Call Natalie Lynch at 512 298 2346 or email us.
Resources Used:
1. Discrimination by Type | U.S. Equal Employment Opportunity Commission (eeoc.gov)
2. Harassment | U.S. Equal Employment Opportunity Commission (eeoc.gov)
